White House, High Court Dustup Over State of the Union Continues

March 11, 2010 at 12:00 AM EST

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The White House struck back at comments made by Chief Justice John Roberts, who criticized the president for using his State of the Union pulpit to voice disapproval of the high court's ruling on campaign finance. Judy Woodruff gets two views on the strains in the relationship and the impact it could have going forward.

JUDY WOODRUFF: That got a rousing ovation, especially from Democrats. The six Supreme Court justices who were present remained seated and impassive, all except Justice Samuel Alito. He shook his head and appeared to be saying, “Not true,” as the president continued.

But the next morning, Vice President Biden defended Mr. Obama’s criticism of the court on ABC’s “Good Morning America.”

U.S. VICE PRESIDENT JOSEPH BIDEN: The president didn’t question the integrity of the court or the decisions that they made. He questioned the judgment of it.

JUDY WOODRUFF: And there things remained for nearly two months, until Tuesday. That’s when Chief Justice John Roberts voiced his own concerns to law students at the University of Alabama.

JOHN ROBERTS, chief justice of the Supreme Court: The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court, according the requirements of protocol, has to sit there, expressionless, I think, is very troubling.

And it does cause you to think whether or not it makes sense for us to be there. This — to the extent the State of the Union has degenerated into a political pep rally, I’m not sure why we’re there.

ROBERT GIBBS, White House press secretary: The president disagreed, and polls show 80 percent of the country disagrees with that decision. The president would have said that in that room had they been sitting in that row or not been there at all.

JUDY WOODRUFF: A rare instance of out-in-the-open tension between these two national institutions, the White House and the Supreme Court.

And to examine that tension, we are joined now by Tom Goldstein, a lawyer who has argued many cases before the Supreme Court. He’s also the founder of SCOTUSblog.com. And Jeff Shesol, he’s author of the upcoming book “Supreme Power: Franklin Roosevelt vs. the Supreme Court.” He’s also a former speechwriter for President Bill Clinton.

Thank you both, gentlemen, for being with us.

Jeff Shesol, to you first.

How rare is it for a justice to speak out in the way that Justice Roberts did this week?

JEFF SHESOL, author, “Supreme Power: Franklin Roosevelt vs. the Supreme Court”: It’s extremely rare. You actually have to go all the way back to the 1930s, in the middle of the court-packing fight with President Roosevelt, to find a chief justice, or really any justice, speaking out so strikingly against the other branches of government.

In the middle of that court-packing fight, Chief Justice Charles Evans Hughes actually not only took a couple of swipes at the president obliquely in a couple of speeches, but he also wrote an open letter to the leader of the Senate opposition in the middle of the court-packing fight, and, in that letter, took apart the president’s proposal point by point by point.

It had a devastating effect. And then he retreated into silence. And that’s generally where most chief justices stay, in silence. So, this was a — a real break from precedent.

JUDY WOODRUFF: So, Tom Goldstein, if it’s — if it’s a break from precedent for the — for the chief justice to do that, what about just to see this sort of a disagreement between the White House and the high court?

TOM GOLDSTEIN, SCOTUSblog.com: Well, and it’s very rare for these disagreements, which actually exist all the time, to break out into the open.

I don’t think John Roberts would say that he was actually attacking the president. He’s saying: Essentially, we got invited to this thing. We have to be really polite. And it’s turned into a political pep rally, and we have been put on the opposing team. So, say what you want. Criticize us, if you will, but maybe we won’t sit there for it.

JUDY WOODRUFF: Well, what is the thinking in the legal community about the decision of the president to take on this — this particular decision by the court with the justices sitting right there in front of him?

TOM GOLDSTEIN: Well, the decision is very controversial. As your piece mentioned, it does reverse a significant amount of prior precedent.

And, so, the president is perfectly within his rights to criticize it. There is some dispute about whether the criticism was actually entirely accurate during the State of the Union. And I think that may have something to do with the justices’ reaction, particularly Justice Alito’s reaction.

If you’re really going to go after them, make sure you get every detail right.

JUDY WOODRUFF: So — so, Jeff Shesol, you know, some people have said to me, you know, well, presidents and Supreme Courts have disagreements all the time.

Why is this instance different?

JEFF SHESOL: Well, I think that this instance is different for a couple of reasons.

And one is that I think you have to put yourself back about a month ago, to the context of the State of the Union address. The decision had just come down. And it wasn’t the first decision to come from this court, and from a narrow majority of this court, that indicated an eagerness to really overturn many decades of precedent, and to essentially stand in opposition to the goals, if not directly yet, the policies of this administration.

So, I think that there is an opposition set in place now that you have seen periodically over American history. What’s remarkable about this moment in particular is that both branches now, both the executive branch and the judiciary, have decided to make this an open discussion. And that is rare, indeed, as we described earlier.

JUDY WOODRUFF: Tom Goldstein, is the fear that damage is done to one institution or the other, and, if so, which one, or both?

And that is, if you have the justices sitting there mute, really being part of a political fight, if the president is able to paint the Supreme Court as kind of a tool of corporations, or maybe a tool of conservative interests, then the justices — the impression of them in the broader public as neutral arbiters, what the chief calls, you know, an umpire, is kind of lost, their credibility, which is all that they have, really, in terms of getting their decisions enforced and followed and respected by the country.

JUDY WOODRUFF: And, I mean, what we’re really talking about here is, the president wasn’t taking on the whole court. He was taking on the five justices who voted the way he didn’t think they should have.

TOM GOLDSTEIN: That’s exactly right. He believes that that narrow majority on the court has kind of captured it and is taking it in the wrong direction. That’s — he’s certainly entitled to that view.

But the court — I think the members of the court are very concerned to be thrust so directly into the political process. You know, the Congress and the president are used to going back and forth at each other, but putting the Supreme Court in the first two rows of the State of the Union makes it a very awkward situation.

JUDY WOODRUFF: Jeff Shesol…

JEFF SHESOL: I would…

JUDY WOODRUFF: Go ahead.

JEFF SHESOL: I would just add — thanks.

I would just add to what Tom said that it’s actually interesting, and I think the most surprising thing to happen over these past weeks is the chief justice’s decision to reengage this political controversy.

I agree with what Tom said. They’re not used to being drawn into this. They don’t usually engage in these kind of public discussions. But this has been kind of a quiet issue for the last month, since the discussion died down after Justice Alito’s demonstration there in the House chamber.

The chief justice made a decision — we have to assume it was a decision — he didn’t say this by accident — to get back into this. And that, I think, is a bit surprising, given what Tom said.

JUDY WOODRUFF: Where, Jeff Shesol, do you come down, though, on this question of — of damage? Does — how — does this have the potential to do damage to the institution of the court?

JEFF SHESOL: I think it does, absolutely.

I think that, as Tom said, so much of the authority of the Supreme Court flows from the fact that it is seen as being above politics. Now, of course, we all understand, much more so now than in the 1930s, that justices are political, that they are ideological, and that, often, that influences their decisions. We’re not surprised by — by this.

But we don’t like to think about it very much. We don’t really like to believe that. We don’t do like to hold on to the idea that, when they put on those black robes, that they separate themselves from the political fray.

And, so, to see Chief Justice Roberts stepping back into it with a comment like this, which is actually quite similar to some comments that Justice Thomas made following the State of the Union address a few weeks ago, is, in itself, a surprising thing.

And I think it’s very risky for the court. I think it does risk the integrity of the court, for the very reasons that Tom described.

JUDY WOODRUFF: You agree it’s surprising?

TOM GOLDSTEIN: It’s a little surprising.

I will say he was answering a law student’s question. I don’t even know that he was very conscious of the fact that there would be video. I do think that it — he had made a judgment. They likely have talked about it. It wouldn’t be surprising if this coming State of the Union, we were down — back down to one or zero justices.

JUDY WOODRUFF: How much difference does it make, whether the justices continue this tradition of appearing, being present at the State of the Union?

TOM GOLDSTEIN: Well, interestingly, it’s not so much of a tradition. You know, we have only had spoken State of the Union addresses since about the — 1913 or so.

Around 2000 to 2005, there was only one justice. In 2000, there were none. It was in the late Clinton administration and then again more recently, since John Roberts has been the chief, that we have had the justices there. So, if they were to disappear, I don’t think anyone would take notice.

If it’s truly going to be a political event, I think they will make the judgment that they’re not a political institution; they probably shouldn’t be there.

JUDY WOODRUFF: Jeff Shesol, same…

JEFF SHESOL: I would add, though, that, in 1937, in the middle of the Supreme Court fight — or on the eve of the Supreme Court fight, President Roosevelt made a very direct attack on the court in the State of the Union address.

This had actually been leaked to the justices in advance of the State of the Union address, and all nine boycotted the speech, which was very disappointing to President Roosevelt. He was very eager to deliver those lines with the justices sitting in front of him.

JUDY WOODRUFF: Well, we don’t know what is going to come next in this particular episode, but I know we’re all going to be watching at next year’s State of the Union to see which, if any, justices show up.

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